Citation Nr: 18123978
Decision Date: 08/03/18 Archive Date: 08/03/18
DOCKET NO. 94-05 887
DATE: August 3, 2018
ORDER
Entitlement to an initial disability rating in excess of 50 percent for bilateral plantar fasciitis is denied.
Entitlement to an effective date prior to October 5, 1990 for service connection for left ankle strain is denied.
Entitlement to an effective date prior to October 5, 1990 for service connection for degenerative disc disease of the cervical spine is denied.
Entitlement to an effective date prior to October 5, 1990 for service connection for plantar fasciitis is denied.
Entitlement to an effective date prior to December 1, 1994 for service connection for a left shoulder disability is denied.
Entitlement to an effective date prior to December 1, 1994 for service connection for a right shoulder disability is denied.
REMANDED
Entitlement to service connection for bilateral pes planus is remanded.
Entitlement to an initial rating in excess of 20 percent for impingement syndrome, left shoulder is remanded.
Entitlement to an initial rating in excess of 20 percent for impingement syndrome, right shoulder is remanded.
Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine is remanded.
Entitlement to an initial rating in excess of 10 percent for residuals of a left ankle strain is remanded.
Entitlement to an initial rating in excess of 10 percent for residuals of a right ankle injury is remanded.
Entitlement to an effective date prior to September 1, 2012 for the grant of Basic eligibility to Dependents' Educational Assistance is remanded.
FINDINGS OF FACT
1. The Veteran’s service-connected plantar fasciitis has been rated by analogy under the rating criteria for pes planus; the Veteran has been in receipt of the maximum disability rating for a bilateral disability under this criteria for the entire appeals period.
2. Service-connected bilateral plantar fasciitis more closely approximates impairment productive of accentuated pain on use of the feet and extreme tenderness of the plantar surfaces of the feet, which are not improved by orthopedic shoes or appliances.
3. The August 1981 denial of service connection for left ankle strain became final, new and material evidence was not received within one year of its issuance, and the Veteran did not file a claim to reopen until October 5, 1990.
4. In assigning the current effective date of October 5, 1990 for degenerative disc disease of the cervical spine, the RO construed a claim for a back disorder to include a cervical spine disability.
5. The earliest claim for service connection for a back disorder was received on March 10, 1982; however, there is no competent evidence that the Veteran had degenerative disc disease of the cervical spine between March 10, 1982 and October 5, 1990.
6. The earliest claim for service connection for a bilateral foot disorder was received on January 21, 1981; however, there is no competent evidence that the Veteran had plantar fasciitis between January 21, 1981 and the current effective date of October 5, 1990.
7. The earliest claim for service connection for a left shoulder disorder was received on December 1, 1994.
8. The earliest claim for service connection for a right shoulder disorder was received on December 1, 1994.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 50 percent for the service-connected bilateral plantar fasciitis are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7,4.14, 4.71a, Diagnostic Code 5276 (2017).
2. The criteria for an effective date earlier than October 5, 1990 for the award of service connection for left ankle strain are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.151, 3.155, 3.156, 3.400 (2017).
3. The criteria for an effective date earlier than October 5, 1990 for the award of service connection for degenerative disc disease of the cervical spine are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.151, 3.155, 3.156, 3.400 (2017).
4. The criteria for an effective date earlier than October 5, 1990 for the award of service connection for plantar fasciitis are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.151, 3.155, 3.156, 3.400 (2017).
5. The criteria for an effective date earlier than December 1, 1994 for the award of service connection for left shoulder are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.151, 3.155, 3.156, 3.400 (2017).
6. The criteria for an effective date earlier than December 1, 1994 for the award of service connection for right shoulder are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.151, 3.155, 3.156, 3.400 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The claim for entitlement to service connection for pes planus was appealed from a January 2015 rating decision. The claims for increased ratings and earlier effective dates for plantar fasciitis, left and right shoulder impingement, degenerative disc disease of the cervical spine, and left ankle strain were appealed from a March 2017 rating decision. This case has most recently been before the Board in December 2016 and July 2017.
The case has a long and complex procedural history. In particular, the Board finds that it would be useful to summarize the procedural history of the Veteran’s claims involving his feet, in order to clarify the current status of these claims.
The Veteran initially filed a claim for entitlement to a foot disorder in January 1981. In an August 1981 rating decision, the RO denied entitlement to service connection for calluses of the feet. The Veteran perfected an appeal of this decision, and in an October 1983 decision, the Board determined that service connection was not warranted for pes planus and residuals of a foot injury.
In October 1990, the Veteran filed a claim for service connection for injuries to his feet. In a January 1992 rating decision, the RO reopened a claim for a bilateral foot condition, to include pes planus, but denied the claim, finding that the Veteran’s service treatment records reflected that pes planus existed prior to service and that while service treatment records reflected treatment for foot problems, these were acute exacerbations of his pre-service foot deformity and did not result in any aggravation. The Veteran perfected an appeal to this decision, and claimed the Board had committed clear and unmistakable error (CUE) in its October 1983 decision.
In a September 1996 decision, the Board dismissed the Veteran’s claim of CUE in the October 1983 Board decision, and found that no new and material evidence had been presented to reopen the claim for a foot disorder since the October 1983 Board decision. The Veteran appealed the Board’s decision to the Court, and in September 1999, the Court vacated and remanded the Board’s dismissal of the Veteran’s claim of CUE in the October 1983 Board decision and its determination that no new and material evidence had been presented sufficient to reopen the claim for entitlement to service connection for pes planus.
In March 2001, the Board issued three decisions.
In one, the Board noted that, in its 1983 Decision, the Board had denied service connection for pes planus and residuals of foot injury; however, the issue adjudicated by the RO was calluses. The issue of pes planus and the residuals of a foot injury had never been adjudicated by the agency of original jurisdiction and therefore the Board was jurisdictionally barred from adjudicating these claims. As such, the October 1983 Board decision which denied service connection for bilateral foot disabilities other than calluses was vacated. The motion for revision of that portion of the October 1983 decision on the basis of CUE was dismissed.
In a separate March 2001 Board decision, it was noted that the Veteran’s claim for service connection for calluses of the feet had not been subject to a final decision, as the Veteran had perfected his appeal of this denial to the Board, and the Board’s October 1983 decision had been vacated as explained above.
In a third March 2001 decision, the Board remanded the issue of entitlement to service connection for calluses of the feet for additional development, and referred a claim for service connection for a disability other than calluses of the feet to the RO for appropriate action.
The Board subsequently remanded the issue of service connection for calluses of the feet for additional development in November 2006 and denied the claim in a December 2008 decision. The Veteran appealed this denial to the Court, and the Court vacated and remanded the issue in March 2011.
The Board remanded the claim for entitlement to service connection for calluses of the feet in March and October 2012 and May 2013 before denying the claim in a November 2013 decision. The Veteran did not appeal this Board decision, and it has remained final. The Veteran has not contended that he has current calluses of the feet that are service-connected. As such, the issue of entitlement to service connection for calluses of the feet is not on appeal and will not be considered herein.
In a January 2015 rating decision, the RO determined that new and material evidence had not been presented in order to reopen the Veteran’s claim for entitlement to service connection for bilateral pes planus. However, the Veteran perfected an appeal of this decision, and in a December 2016 decision, the Board found that a final decision had never been issued with regard to the Veteran’s claim for service connection for bilateral pes planus, and remanded a claim for entitlement to service connection for a bilateral foot disorder to include pes planus with pronation, but not to include calluses of the feet, for additional development.
In a March 2017 rating decision, the RO granted service connection for plantar fasciitis with an effective date of October 5, 1990. A contemporaneous supplemental statement of the case continued the denial of service connection for pes planus. The Veteran disagreed with the effective date and rating for plantar fasciitis.
In July 2017, the Board remanded the issues of service connection for pes planus, a higher initial rating for plantar fasciitis, and an earlier effective date for plantar fasciitis. These issues are again before the Board.
Increased Rating
Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.
If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7.
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.
The Veteran’s service-connected plantar fasciitis has been rated at 50 percent—the maximum rating available under Diagnostic Code 5276—throughout the appeals period. Diagnostic Code 5276 pertains to flat feet, and a 50 percent disability rating is applicable when the disorder is bilateral and pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and is not improved by orthopedic shoes or appliances.
The Board observes that the record reflects the Veteran’s ongoing reports of pain in his feet. During a January 2017 VA examination, the Veteran complained of pain in his feet while standing, which was accentuated on use. There was no swelling on use or pain on manipulation of the feet. The Veteran did not have extreme tenderness of the surfaces of the feet but had decreased longitudinal arches and marked pronation. He did not have indications of swelling on use or marked inward displacement and severe spasm of the Achilles tendon on manipulation.
In this case, the Board finds that the symptoms associated with the Veteran’s service-connected bilateral plantar fasciitis throughout the appeals period most likely approximate the rating criteria for a 50 percent rating under Diagnostic Code 5276.
The Board acknowledges the Veteran’s contentions, through his representative, that his service-connected plantar fasciitis should be provided separate ratings for each foot under Diagnostic Code 5284 to render a higher overall rating for the Veteran's bilateral foot disability. Diagnostic Code 5284 provides rating criteria for other foot injuries. Under this Diagnostic Code, a 10 percent rating is warranted when a foot injury is productive of a moderate disability, a 20 percent rating is warranted when a foot injury is productive of a moderately severe foot disability, and a 30 percent rating is warranted when a foot injury is productive of a severe disability. A maximum rating of 40 percent may be assigned if loss of use of a foot is demonstrated. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2017).
VA General Counsel has determined that Diagnostic Code 5284 is a general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion. VAOPGCPREC 9-98.
The Board concludes that Diagnostic Code 5284 is not applicable to the Veteran's bilateral plantar fasciitis as the symptoms of the Veteran's bilateral fasciitis are expressly contemplated under Diagnostic Code 5276. The Board finds that, in order to qualify for an increased disability rating under Diagnostic Code 5284, the Veteran's bilateral plantar fasciitis would need to include symptoms not appropriately contemplated by Diagnostic Code 5276. As stated above, Diagnostic Code 5276 rates bilateral, acquired flatfoot on the severity of the impairment, as well as evidence of deformity, pain, and swelling. As such, the application of Diagnostic Code 5284, for “other foot injuries,” would not be appropriate in this case where the Veteran’s symptoms, are adequately addressed under Diagnostic Code 5276, which specifically considers symptoms such as pain, pronation, tenderness, pain on palpitation, inward bowing of his Achillis tendon, pronation of gait, and foot spasms.
In this case, there are no manifestations of the service-connected bilateral foot disability that are not contemplated by Diagnostic Code 5276. The Board finds that the Veteran’s bilateral foot disability is correctly rated under Diagnostic Code 5276, in keeping with the overall scheme for rating disabilities.
Effective Dates
Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2017). Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110 (a).
Specifically, under 38 C.F.R. § 3.400(q)(1)(ii), the effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400 (r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later.
The Court of Appeals for Veterans Claims (Court) has explained that, in an original claim for service connection, the date entitlement arouse is governed by the date the claim is received, not the date of the medical evidence submitted to support a particular claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). Where a prior unappealed decision becomes final and binding on a Veteran, the effective date of a subsequent award of service connection is the date of receipt of a reopened claim, not the date of receipt of the original claim. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000).
The applicable statutory and regulatory provisions require that VA look to all communications from a veteran which may be interpreted as applications or claims—formal and informal—for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5110 (b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a). The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop the Veteran’s claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board’s decision. See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). However, in determining whether an informal claim has been made, VA is not required to read the minds of the Veteran or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999).
The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits).
1. Earlier effective date – left ankle disability
The Veteran contends that an effective date prior to October 5, 1990 is warranted for his service-connected left ankle disability.
The Veteran’s original claim for service connection for a left ankle disability was received by the VA on January 21, 1981 and was denied in an August 1981 rating decision. The Veteran was advised of the decision and his appellate rights in a September 1981 letter.
However, the Veteran did not submit a timely notice of disagreement with this issue and no new and material evidence was added to the record during the appeals period. Therefore, the August 1981 rating decision is final. 38 U.S.C. 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999).
The Veteran subsequently filed a claim to reopen the previous denial of service for a left ankle disability on October 5, 1990. In a March 2017 rating decision, the RO granted entitlement to service connection for a left ankle injury with an effective date of October 5, 1990. The Board finds that there is no document of record that can be construed as an informal or formal claim for service connection for left ankle disability that was received after the last final August 1981 denial, but prior to the October 5, 1990 application to reopen.
Based on the analysis above, and after reviewing the totality of the evidence, the Board finds that the RO did not receive an application to reopen a claim for service connection for left ankle disability after the August 1981 rating decision and prior to the receipt of the application to reopen on October 5, 1990.
2. Earlier effective date – degenerative disc disease of the cervical spine
The Board notes that, in assigning the current effective date of October 5, 1990 for service connection for degenerative disc disease of the cervical spine, the RO construed the Veteran’s claim for a back disorder as including a disability of the cervical spine. In a March 2017 rating decision, the RO noted that, although the Veteran did not specifically claim service connection for a cervical spine disability, he testified in an April 22, 1992 hearing at the VA Regional Office and an April 30, 1996 hearing before the Board that he had a cervical spine disability. As such, the RO assigned a date of October 5, 1990, the date of receipt of his claim for a back disability.
The Board notes that the evidence of record does not include any statement or submission that could clearly be construed as a claim for entitlement to service connection for a cervical spine disability. However, in a March 1982 notice of disagreement to the August 1981 rating decision, the Veteran contended that he had a back disability that was service-related.
Even if the Board were to accept this statement as a claim for entitlement to service connection for a cervical spine disorder, this would not entitle the Veteran to an effective date for his service-connected degenerative disc disease of the cervical spine prior to the currently assigned October 5, 1990. As noted above, an effective date is assigned commensurate with the date the claim was received or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.
While the record shows that the Veteran was diagnosed with mild cervical muscle strain in March 1990, the record does not reflect that the Veteran was diagnosed with his service-connected degenerative disc disease of the cervical spine prior to the current October 5, 1990 effective date. As such, there is no basis upon which to grant an effective date for entitlement to service connection for degenerative disc disease of the cervical spine prior to October 5, 1990.
3. Earlier effective date – plantar fasciitis
The Veteran contends that he is entitled to an effective date prior to October 5, 1990, for the grant of service connection for plantar fasciitis.
The Board notes that the Veteran first filed a claim for entitlement to service connection for a foot condition in January 1981. While the Veteran did not identify the disorder for which he was applying, the RO accepted this claim as one for calluses of the feet, based upon an examination provided at that time. Even if the Board were to accept this claim as one for entitlement to service connection for another foot disorder, including plantar fasciitis, the Board notes that the evidence of record does not show a diagnosis of plantar fasciitis at any time between January 1981 and the current effective date of October 5, 1990. As such, there is no basis upon which to grant an effective date prior to October 5, 1990 for entitlement to service connection for plantar fasciitis.
4. Earlier effective date – left and right shoulder disabilities
The Veteran contends that an effective date prior to December 1, 1994 for his service-connected left and right shoulder disabilities is warranted.
However, upon review of the record, there is no filing or submission prior to his claim filed on December 1, 1991 that could be construed as an informal or formal claim for left or right shoulder disabilities.
After reviewing the totality of the evidence, the Board finds that the RO did not receive an application for entitlement to service connection for left or right shoulder disabilities until December 1. 1994. As such, earlier effective dates for the award of service connection for the Veteran’s left and right shoulder disabilities are not warranted.
REASONS FOR REMAND
Service connection—bilateral pes planus.
The Veteran contends service connection is warranted for his pes planus. In this case, the Veteran was noted as having pes planus on his enlistment examination. With an explicit finding of mild pes planus upon enlistment, the presumption of soundness does not attach with respect to this disability, and the only benefit that can be awarded for pes planus is service connection on the basis of aggravation of the pre-existing pes planus, by application of 38 U.S.C. § 1153, and 38 C.F.R. § 3.306.
A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2017).
If a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). In that case, the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306 (2017); Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004).
The Veteran was provided with a VA examination in January 2017. The examiner diagnosed bilateral pes planus, and opined that pes planus, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. She provided the rationale that the Veteran’s pes planus was of moderate severity and there was no evidence of flat feet getting worse during service.
The Board finds that the rationale for this opinion is inadequate in that she did not address the findings in the Veteran’s service treatment records. Barr v. Nicholson, 21 Vet. App. 303 (2007). Upon enlistment, the Veteran’s pes planus appeared to be noted as mild. However, in October 1990 he underwent a podiatry examination at separation, which noted that he had pes planus with “moderate pronation.” As it appears that the Veteran’s pes planus may have worsened while he was in service, the Board finds that a new opinion is necessary.
Increased rating claims—impingement syndrome of the left and right shoulders, degenerative disc disease of the cervical spine, residuals of a left ankle strain, and residuals of a right ankle injury is remanded.
The Veteran contends that his service-connected shoulder, neck, and ankle disabilities warrant higher disability ratings. The most recent examination provided to assess the severity of these service-connected disabilities was conducted in January 2017.
However, these examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements/pain on weight-bearing testing. In addition, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups or after repetitive movement.
As such, on remand, the Veteran should be provided with additional examinations to determine the current severity of his service-connected shoulder, neck, and ankle disabilities that comport with the holdings in Correia and Sharp.
Effective date prior to September 1, 2012 for the grant of Basic eligibility to Dependents' Educational Assistance
Regarding the claim of entitlement to an effective date prior to September 1, 2012, for the grant of DEA benefits, the Board notes that that issue is inextricably intertwined with the claims remanded herein. Hence, a determination on the claim for an earlier effective date should be deferred pending final dispositions of the claims currently on appeal. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991).
The matters are REMANDED for the following action:
1. Obtain an addendum opinion from an appropriate examiner as to whether the Veteran’s preexisting pes planus worsened during service. If additional examination is determined necessary, such examination should be conducted.
After a thorough review of the medical history, the examiner is requested to prepare an addendum opinion as to whether the Veteran’s pes planus worsened during service beyond the natural progression of the illness. The examiner must address the Veteran’s service treatment records reflecting that, upon enlistment, the Veteran’s pes planus appeared to be noted as mild, but that in October 1990 he underwent a podiatry examination at separation, which noted that he had pes planus with “moderate pronation.”
If the examiner cannot provide an opinion without speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).
2. Schedule the Veteran for appropriate VA examinations to determine the current nature and severity of his bilateral shoulder, neck, and bilateral ankle disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail.
The examiner should identify all bilateral shoulder, neck, and bilateral ankle disabilities found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present.
The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time.
Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).
Keith W. Allen
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel

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